40 posts from September 2014

09/30/2014

Judge Jeffrey Sutton (Ohio State University (OSU) - Michael E. Moritz College of Law; U.S. Court of Appeals for the Sixth Circuit) has posted Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) on SSRN. Here is the abstract:

Review of Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013).

In claiming that Americans are looking for rights in all the wrong places, Professor Emily Zackin targets two flawed mindsets: (1) that the exclusive source of new individual rights is the federal Constitution, as opposed to the state constitutions; and (2) that constitutional rights in general are exclusively negative, just libertarian prohibitions on governmental action, not affirmative calls for the government to act.

The first point returns to a once dominant, then forgotten, now reemerging, insight — that constitutional rights do not originate solely in the U.S. Constitution or come only from decisions of the U.S. Supreme Court. There are fifty-one constitutions and fifty-one high courts, and all of them protect a wide variety of individual rights. The second point, the central thesis of Zackin’s book and the useful insight offered in it, acknowledges that the American constitutional law tradition focuses on negative protections — structural and individual-rights limitations on government — but claims that this perspective does not describe that tradition in full. To get the full picture, she urges, one must account for a strain of positive constitutional rights dating from the nineteenth century and found in most state constitutions, rights that operate by compelling governments to act, not by prohibiting them from acting. To support the point, Zackin offers three examples of positive-rights traditions in the states’ constitutions: the right to a free and adequate public education, the rights to safe working conditions and fair pay, and the right to a clean environment. The book purports to tell what is, not what should be. But some will take Zackin’s description to suggest, if not to call for, a norm-changing view: that the American constitutional tradition ought to account for such positive rights and appreciate the possibility of more.

Friedrich A. von Hayek was primarily an economist and political philosopher, but I plan to discuss another side of him: Hayek the constitutional theorist. Hayek had a lot to say about constitutions in general, and the American Constitution in particular.

Note: A version of this essay was presented at the Ninth Annual Friedrich A. von Hayek Lecture at New York University School of Law on October 17, 2013.

09/29/2014

Jessie Allen (University of Pittsburgh - School of Law) has posted Law and Artifice in Blackstone's Commentaries (4 Journal of Law: A Periodical Laboratory of Legal Scholarship No. 3 Chapter One, Summer 2014) on SSRN. Here is the abstract:

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

09/28/2014

It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech —was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently.

By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.

By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts understand what it means to guarantee freedom of speech, and to what kinds of expression the guarantee applies.

[Justice] Murphy [in Chaplinsky v. New Hampshire] was merely making an offhand claim to shore up the value judgment that underlay his holding. The modern Court, in yet another exercise in phony originalism, elevates that claim to official doctrine, and purports to be relying on an ancient understanding when in fact it is doing nothing of the kind. The value judgments in the present doctrine may or may not be defensible, but they need to be defended as such, not cloaked behind bad history.

Since its organization in the early 1980s, the Federalist Society has sought to influence the federal courts by promoting conservative and libertarian legal scholarship. Qualitative accounts provide evidence that the Federalist Society has succeeded in this goal by acting as a political epistemic network. Here, I investigate the organization’s influence on a large-N scale. I argue that, if the Federalist Society does indeed proliferate legal arguments throughout its network, we should expect to see shared language among its members. Using plagiarism detection software, I compare the opinions of Justices Scalia, Thomas, and Alito and Chief Justice Roberts – the Supreme Court’s four Federalist Society members – to the opinions of those trying to influence them (in this preliminary analysis, judges on the U.S. Courts of Appeals) in order find the degree to which they share common phrases. While I find no independent effect of Federalist Society participation on shared language, I do find that these four justices borrow language from judges nominated by Reagan and W. Bush (both sympathetic to the Federalist Society vision) at a higher rate than they do from judges nominated by other presidents.

09/26/2014

The National Archives just released a free iPad app about the creation of the Bill of Rights, including some very interesting images of handwritten mark-ups. It looks like an excellent teaching tool to me.

"The theory [of representation in the Maryland legislature in the 17th century] seems to have been that every freeman was entitled to attend the assembly in person if he desired to do so. In practice the majority of them chose not to be present, but instead to entrust their votes to [others who acted by proxy at the legislature] . . . . Apparently there was no rule as to the number of freemen that one [attending member] could represent." (emphasis added).

It strikes me that if a modern state legislature could organise itself along these historical lines and that if such a system is consistent with the federal constitution, then designating a referendum as part of the state legislature is not quite an intellectual stretch and is arguably also consistent with the federal constitution.

Admittedly, Maryland practice was exceptional. Clarke calls it "peculiar". And I have no idea if this practice continued into the 1760s and beyond.

And, as to why "Legislature" might mean something different in Article V that it does in Article I:

Article V only calls on each participating state to make a binary decision: ratify or not. In that situation, only the legislature chamber acts and the expression of its action is not a statute, just a certificate as evidence of compliance with Article V. Where a federal constitutional provision leaves room for state discretion to enact a statutory regime -- i.e., set House district boundaries -- a statute is called for. In those circumstances, "legislature" as used in the federal constitution means the legislative power to make statutes, and it would include governors where the state constitution provided for a veto, etc.

RELATED: Derek Muller (Excess of Democracy) has a couple of posts on the Arizona State Legislature case, with additional links --

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices — Scalia, Thomas, and Alito — all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.

09/24/2014

Seth Barrett Tillman sends this comment on the Arizona re-districting case I discussed earlier (the issue being whether re-districting can be given by referendum to a commission when the Constitution says it must be done by "the Legislature"):

There is a lot of slippage in regard to how the federal Constitution uses "legislature". Sometime it refers to the legislative chambers. See Article V. But other times it refers to the statutory law-making power of the state which includes the governor's veto power if the governor has such a power under state constitutional law. See Article I, Section 4, Clause 1.

I wrote about this in 2005, in Seth Barrett Tillman, Betwixt Principle and Practice: Tara Ross’s Defense of the Electoral College, 1 N.Y.U. J.L. & Liberty 922, 925-26 (2005) (reviewing Enlightened Democracy: The Case for the Electoral College (2004)) (footnotes omitted):

When the Bill of Rights -- the first amendments to the Constitution -- was proposed, the ratifying States generally acted by resolution in ratifying amendments. Governors -- even if they were part of the lawmaking apparatus with regard to statutes -- were generally excluded. The term "legislature" in Article V was understood to embrace not the lawmaking or statute-making apparatus of the State, but just the legislative chambers. This view was not universally shared. New York acted by bill, and Governor Clinton participated. Longstanding practice, not the text of the Constitution, has "ratified" the non-New York view with regard to the meaning of Article V: governors do not participate in the Article V process for ratifying amendments to the Constitution. [Tara] Ross believes and wants you to believe that just because the term "legislature" in Article V embraces only the legislative houses, the word "legislature" in Article II, Clause 2 -- "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled" -- must have the same meaning. Not so fast. Cannot the term have a variety of meanings depending on context? For example, Article I, § 4 states that "the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." Our unbroken history since the Founding is that here "legislature" refers not to the State's legislative houses, but to the lawmaking apparatus of the State. Here, state governors are and have always been included if they are part of the lawmaking apparatus under state constitutional law. Thus, the term "legislature" might have a variety of textual meanings depending on context. At least that was the position of Chief Justice Taft.

One could reasonably make the argument that the term "legislature" in Article II incorporates whatever method or methods each State's constitution permits for lawmaking, which might encompass statewide referendums as Colorado has chosen. So what does the term "legislature" mean in Article II? Answer: we do not know. And the federal courts have not told us. But if the term is ambiguous, if it will equally embrace two constructions, and one such construction preserves the constitutionality of state law and state powers and simultaneously enlarges the zone of democratic action by American voters, it is obvious which construction the courts and commentators ought to pick.”

Professor Hasen in this publication [35 Hastings Const. L.Q. 599 (2008)] (and perhaps others) has examined this issue in greater detail than I did in my 2005 book review.

Looking back, I see the textual weaknesses of my 2005 view which you point out in your post. But it seems to me that as long as state constitutional law is consistent with the Guarantee Clause and equality rights in the 14th Amendment, a state has wide discretion in vesting the legislative power in the legislative design of its choice, which might very well include referenda, etc.

I hesitate to out-textualist Professor Tillman, who's as careful and committed a textualist as can be found. But here I think I disagree with his ultimate conclusion.

First, I think it's dubious to read the same word to have different meanings in different articles of the Constitution. Of course, it's not out of the question. And it's very interesting that post-ratification practitioners apparently thought "Legislature" sometimes included the governor and sometimes did not. But I am not sure what to make of that history without knowing why they treated the two differently. Nor do I see anything in the context (apart from the peculiar post-ratification history) to explain why "Legislature" would mean one thing in one place and one thing in another.

But in any event, I don't think we need to solve that problem to deal with the Arizona State Legislature case. I'm willing to accept that "the Legislature" meant "the Legislature acting through its constitutionally described processes," including either with the Governor's approval and simple majority or without the Governor's approval and a supermajority. (Why that would not also apply to Article V is a mystery, but one we can leave aside).

However, it is a very different matter to then say that "the Legislature" means any person or entity given lawmaking authority by the state constitution. By that reasoning, if the state constitution gave the Governor alone the power to regulate elections to the federal Congress, then the Governor would be "the Legislature" for that purpose. That is so far from the textual meaning of "the Legislature" (which is typically understood as the exact opposite of the executive acting alone) that I would want to see some founding-era commentary or practice suggesting that meaning before giving it any credence -- and I bet it can't be found.

Of course, eighteenth-century separation-of-powers theory recognized that lawmaking power could be vested in various persons and entitites, not just in a representative assembly. But merely having lawmaking power did not make a person or entity "the Legislature". No one at the time would have described the French king as "the Legislature" even though he had power to make law by decree.

Further, Article I, Section 4 says that elections are regulated "in each State by the Legislature thereof". As I suggested in my prior post, "by the Legislature thereof" is redundant if this phrase means only "by each State, in the manner it decides." The only way to make "the Legislature thereof" meaningful is to read it to refer to a specific branch of the state government.

I'll concede that the Framers were likely not thinking of the situation of the people acting by referendum. They likely wrote "the Legislature" to distinguish from the executive or the judiciary. But the whole of the people is not "the Legislature" any more that the executive or the judiciary is, even when they exercise lawmaking power.

In any event, I'm further persuaded that this is a very interesting case in terms of constitutional interpretation.

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change them, under the rules as they stood at the time. We require claims of constitutional change to provide this kind of historical accounting; and a wide variety of approaches -- "conservative" and "liberal," from precedent to post-Founding practice -- are and could be defended as products of the Founders' law. These practices show an implicit commitment to a deeply originalist premise: that our law today consists of their law, the Founders' law, plus any lawful changes.

If this account is right, then what's important about the Constitution isn't what its text said, but what its enactment did -- what it contributed to American law at the Founding, as preserved to the present day. Rather than look to original intentions, original public meaning, and so on, we should look to the original law -- the law that was added by the enactment of each provision, under the legal rules governing interpretation at the time. This "original-law originalism" helps us to understand, and hopefully to resolve, longstanding constitutional debates: originalists and nonoriginalists ought to disagree about today's law, while different schools of originalists ought to disagree about the law of the past.

The claim that we still take the Founders' law as our own, as lawfully changed, is a claim about current society; it might be true or false. This Article merely argues that, if it is true, it's the best reason to be an originalist -- and, if it's false, the best reason not to.

Professor Sachs presented an earlier version of this article at the Originalism Works-in-Progress conference last February. It's had an enormous influence on my thinking, although there are important parts with which I disagree. My comment at the time:

The bottom line is that this is going to be one of the most important articles -- quite possibly the most important -- in originalism theory in 2014. (Its spot in the "originalism top ten for 2014" seems assured.) It's a very ambitious attempt to justify originalism by reference to legal practices, not (as I'm inclined to do) by reference to normative claims. Also -- and this is an odd thing to say about a draft article on legal theory that's 74 pages and 259 footnotes -- it's fun to read.

To very briefly summarize my reaction, I think the core insight (with which I agree, and which I did not see so clearly before reading the article) is: "that our law today consists of their law, the Founders' law, plus any lawful changes." I disagree, though, with the implication that framing the matter this way elides normative conclusions. It remains open to ask, what is a "lawful change"? That is (in my opinion) a normative question: what should we regard as a lawful change?